POPLA Stage, help please!

wolvesfan2

Newbie here, have read the threads & am at the POPLA stage.

Bit of background:

Live in residential complex, parking managed by UCS, residents given permit & visitor permit to use in allocated space & numerous 'visitor' spaces.
The car was parked in a visitor space & the bloody permit had fallen on the floor - hence ticket for not displaying a permit.

Followed advice on here, appealed the NTD as the keeper around Day 21, also appealed to the management company.

Appeal letter denied & POPLA code generated (expires 9th April) according to the checker.

Have drafted an POPLA appeal letter & would be grateful if those who are vastly more experienced in these matter just check it over for me.

I will attach the appeal rejection letter as it contains a few points which worry me (appreciate that that is its' job), namely the points around the lease & the Beavis case.

Thanks,
Jonny

wolvesfan2

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wolvesfan2

Dear Sir/Madam

RE: POPLA XXXXXXX
Parking Charge Notice: XXXX
Vehicle Registration XXXXXX
Date of Issue: 14/02/2015
Operator: UCS Parking

1) The Charge is not a genuine pre-estimate of loss.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. The Operator alleges that their loss represents the cost of issuing a credit to the permit holder equivalent to the daily cost of the permit as he/she is unable to use the space at the time in question which equates to ‘twenty six pounds and third (sic) pence sterling per day’. Their evidence shows that the car park was not full on the day in question and given that the permits were issued free of charge to the residents for use for themselves and their visitors, I fail to see where the initial loss arises.

A substantial proportion of the costs stated by the Operator are business costs and not obviously a loss arising and cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

2) Lack of signage.

I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put UCS to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

3) Lack of standing/authority from landowner.

UCS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UCS to strict proof of the contract terms with the actual landowner (not a lessee or agent). UCS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UCS are entitled to pursue these charges in their own right.

I require UCS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
4) Unreasonable/Unfair Terms.

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed too high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge and to justify that the charge does not breach the UTCCRs and UCT Act.

5) No Notice to Keeper has been sent, therefore , as the register keeper, I cannot be held liable.

POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.
As no notice has been received, it is not compliant with the Act, and therefore as registered keeper I cannot be held liable.


I therefore respectfully request that my appeal is upheld and the charge is dismissed.